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One of the more complex issues confronting the latest wave of states looking to legalize cannabis, including New Jersey, is how to incorporate social justice efforts into legalization legislation. To date, 33 states have implemented medical cannabis programs and 10 states have legalized cannabis for recreational use. That number will soon rise to 11, as Illinois just became the first state where the legislature passed a bill legalizing both the possession and sale of cannabis, a designation most believed would go to New Jersey or New York.

According to some analysts, the total U.S. cannabis market would be valued at about $28 billion (or more) if it were legalized today. For some, maybe most, this market potential alone is enough to justify legalizing cannabis, not just in New Jersey but throughout the country. For others, however, the undeniable financial benefits of legalizing cannabis, including the business opportunities and potential tax revenues, are not enough to convince them legalization is in the public interest, particularly in the current climate where social justice reform is claiming a lot of attention in the public discourse.

Social justice reforms aimed at redress for the hundreds of thousands of lives that have been negatively impacted by cannabis prohibition have become intricately intertwined with the cannabis legalization movement. While legalizing cannabis, by itself, will not ameliorate the social and economic fallout resulting from the number of arrests related to cannabis in recent years (approximately 24,000 New Jersey residents are arrested each year for possession of cannabis), correctly addressing the social justice component of cannabis legalization is an important focus of any proposed legalization initiative.

Many of the states that legalized cannabis without considering past convictions are now scrambling to pass legislation dealing with expungements and facing backlash for how the resources and financial benefits of the cannabis industry have excluded the communities most affected by the war on drugs.

For more than a year, New Jersey legislators wrestled with a cannabis reform measure that would fully legalize cannabis in the state, but they came up short—in part because they could not reach consensus on the social justice reforms needed to persuade some lawmakers that legalization is the way to go. The much-publicized New Jersey Cannabis Regulatory and Expungement Aid Modernization Act, upon which a vote was postponed in March 2019, would legalize cannabis for adult-use, expand the medical cannabis program, and streamline expungements for minor possession and distribution offenses.

While the New Jersey State Senate decided to postpone a vote on this bill, it still set the framework for what appears to be the underlying structure of future legalization bills across the country. In fact, Illinois' cannabis legalization bill contains many of the same features, including significant criminal justice reforms.

In the area of social justice reform, New Jersey's legislators attempted to take steps to address the significant impacts for thousands of New Jerseyans who have been arrested and convicted of minor cannabis-related offenses. The bill includes an allocation of business licenses for minorities, veterans and those previously convicted of a cannabis-related offense. The bill also contains a provision that would revamp the expungement process in New Jersey and streamline expungements of cannabis-related convictions.

These sweeteners and others were added with the hope of getting the bill across the finish line, but some critics of the measure assert the bill is inadequate because it does not, or indeed cannot, go far enough to assist the individuals and communities affected the most by decades of policies enforcing cannabis prohibition (a disproportionate number of them being African-American and Latino), while others argued it went too far.

Some legislators disfavor outright legalization of cannabis, but favor decriminalization of cannabis (meaning treating possession of cannabis as a minor offense and imposing fines) in order to halt the large number of arrests and convictions related to cannabis each year. While this appears discordant, there is an unease among legislators who favor the decriminalization-only approach with launching a new business industry centered around cannabis after so many years of penalizing people, particularly people of color, for buying and/or selling cannabis.

The legislators in this camp regard the efforts around social justice reform in New Jersey's cannabis legalization bill as a lark—a ploy designed by those who would benefit the most from the legalization of cannabis to get a major concession while providing very little in return to those who bore the brunt of prohibition. They point to some local efforts to keep cannabis dispensaries and retail establishments out of certain affluent communities and the inadequate development of policies aimed at keeping drivers impaired by cannabis off the roadways.

These legislators simply do not believe that the benefits of fully legalizing cannabis, even with strong social justice policy components, can undo the cumulative harms to the communities affected most profoundly by the criminalization of cannabis and who will most likely be on the frontlines of the growing pains associated with the development of the legal cannabis industry.

On the other side are the legislative and business leaders and advocates who see the continued prohibition against cannabis as a losing proposition for all. They are prepared to enact legislation that disrupts the illegal market for cannabis, bringing much needed tax revenue into the state, revenue that can be deployed to address some of the social ills that are perpetuated by current cannabis prohibition policies. The measure is not viewed as a panacea, but as a step in the right direction.

In essence, they recognize that the bill is not perfect, but they continue to adhere to the theory that the perfect should not be the enemy of the good. There is much that will need to be considered, and then reconsidered, as the flesh is put on the bone of cannabis legalization in New Jersey. They argue those inevitable pitfalls and restarts should not, however, derail otherwise positive legislation when the alternative is the continuation of 24,000 arrests a year.

Recently, New Jersey Governor Phil Murphy announced plans to vastly expand the medical cannabis program and the Legislature just passed a new expungement bill that revises procedures and expands eligibility for expungement of criminal records, with a new expedited process for expunging certain low-level cannabis or hashish-related offenses. The legislature is also considering a bill that expands medical cannabis.

Those in favor of expanding the state's medical cannabis program acknowledge the treatment benefits associated with cannabis, even if they are skeptical of wide-based, adult-use of cannabis. Supporters of the measures assert that the status quo in the medical cannabis program is unsustainable, with an ever-expanding patient population lacking access to treatment because of New Jersey's very limited market of growers, manufacturers and distributors.

Most view the recent push to expand medical cannabis and revise the expungement policies as positive developments, but the social inequities within New Jersey will likely continue without legalization of cannabis. Expungement without legalization creates a paradox where individuals will continue to be arrested for offenses that are being expunged on an expedited basis. Notwithstanding this conundrum, it appears the legislature is resigned for now to leave the question of legalization to a referendum vote in November 2020.

It seems like everyone agrees that the status quo is not working and that changes to the system must be made. The question is whether the changes under consideration now, which do not include fully legalizing cannabis, will incorporate enough reform to the system, and whether the legislature will continue to kick the can down the road.

Nikolas S. Komyati is chair of the Cannabis Law Practice Group at Bressler, Amery & Ross in Florham Park. Risa D. Rich is a senior associate in the practice.